Mosvick’s series continues with the Wisconsin court’s challenges to Lincoln’s declaration of martial law.

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Nicholas Mosvick is a PhD candidate in American history at the University of Mississippi, where his research focuses on the constitutional arguments over conscription during the Civil War. He has a JD/MA from the University of Virginia School of Law’s legal history program and he has worked for the Cato Institute as a legal associate in the Center for Constitutional Studies.

In my first post of this series on Ableman v. Booth (1859) and its contested meaning in the Civil War period, I discussed the background of the case, Chief Justice Taney’s opinion, and the Civil War statutes which prompted judicial battles over habeas corpus. However, even before the 1863 Habeas Corpus Act, state courts were already determining the meaning of Ableman. President Lincoln, reacting to protests and rioting against the state drafts ordered under the Militia Act of 1862, suspended the writ of habeas corpus on September 25th, 1862. 1 As a result, draft protestors arrested under Lincoln’s order and subjected to martial law filed for writs of habeas corpus in state courts in order to resist the charges. The most important case before Habeas Corpus Act came once again in Wisconsin in the case of In Re Kemp. Although it did not directly deal with Ableman v. Booth, it clearly followed from the case and showed that the Wisconsin court was still willing to take applications for writs of habeas against federal officers enforcing federal law.

State courts vehemently disagreed over whether or not state courts had jurisdiction and whether Ableman v. Booth directly applied. For example, on November 21, 1862, Judge Manierre of the Circuit Court of Cook County, Illinois ruled on a petition presented for an enlisted soldier under the age of 18 never sworn into service being restrained of his liberty by General Tyler at Camp Douglas. The Provost Marshal of Camp Douglas, Colonel Cowen, resisted the writ of habeas by arguing General Tyler was not bound to obey it. Judge Maniere argued that state courts had power to issue writs of habeas corpus “concurrently with the Courts of the United States, where a person is illegally restrained of his liberty by a naval or military officer of the general government” because such power was not “exclusive in the Courts of the United States” because Congress was permitted to allow Courts to exercise a “concurrent jurisdiction in cases of this kind.” 2 In such cases, state courts derived no authority from the Constitution over the subject matter but were left to exercise jurisdiction when it was conferred on them by state constitutions and laws. Citing Justice Story’s Commentaries, Maniere stated that the dispute over issuing writs of habeas corpus was not a case in which the Courts of the United States by act of Congress or the Constitution could claim exclusive jurisdiction. Significantly, writs issued by state courts could be directed at officers of the United States in which the jurisdiction over their physical location, such as forts or dockyards, were ceded to the United States by the States with a reservation of rights. Only when no such reservation was made was the jurisdiction of the federal courts exclusive. 3

The question for the case was thus whether Camp Douglas fell in the exclusive jurisdiction of the United States, a place in which the President had declared martial law but where the state had not ceded exclusive jurisdiction to the general government. Judge Maniere held that the Constitution vested power in Congress to “call forth the militia to execute the laws of the Union, suppress insurrection and repel invasion” and that by the Militia Act of 1795 and subsequent statutes, the President was “necessarily constituted, in the first instance, the judge of the existence of the exigency, and is bound to act according to the belief of those facts.” If the President called out the militia, his orders were in “strict conformity to the law” and it followed that every act by a subordinate officer was “equally justifiable.” There was no provision for an appeal from or review of the President’s opinion and when the law gave him discretionary power based on his opinion of the facts, he was “thereby constituted the sole and exclusive judge of the existence of those facts.” 4 Additionally, as “Commander‐​in‐​Chief,” the President was vested with the power to determine and command the forces called into the field to suppress insurrection and thus had the exclusive power of “judging and determining the measures to be adopted” in accomplishing the object of suppressing insurrection. The prerogative power could only be restrained by Congress, who had not exercised such power. Among the President’s prerogative powers vested was the power to direct places within the jurisdiction of the states, whether loyal or in insurrection, to be occupied by the military and to proclaim martial law wherever the President judged it necessary. Jurisdiction regarding the execution of civil process and law in such cases lay exclusively with the United States.

Likely the most significant case to come out of Lincoln’s September 1862 order was the Wisconsin case of In RE Kemp. Once again, the Wisconsin Supreme Court meddled in federal business and affected national policy–the Habeas Corpus Act of 1863 was partly a response to this decision. The case came out of Wisconsin’s worst draft riot. On November 10, 1862, the day set for the draft, Nicholas Kemp and a large mob attacked and destroyed the federal draft headquarters and prevented the draft from taking place. The mob assaulted and stoned federal officials and rampaged through Port Washington. Governor Edward Salomon requested that military troops seize the men involved and Kemp was arrested and imprisoned at Camp Randall. On December 4, 1862, the Wisconsin Supreme Court issued a writ of habeas corpus to General W. L. Elliot, commander of the Northwest Department, ordering him to bring Kemp before the Court on December 16. The Court said Kemp’s military imprisonment was illegal because if Kemp’s “riotous behavior” violated state law, only a civil or criminal tribunal could order his detention.

On January 13, 1863, Chief Justice Dixon published his opinion in Kemp, seemingly withholding the ability of federal officers, including those of the Provost Marshal, from making arrests within the state of Wisconsin. Dixon began his opinion with a rather incredible statement, noting that it was his regret that “which I have always felt and which I feel now more than ever, that Congress has not, in the exercise of its undoubted power, withdrawn from the jurisdiction of the state courts, and committed to the exclusive decision of the federal courts, all cases arising under the Constitution and laws of the United States.” 5 In the past, this “omission had led to several perplexities” in the clash of jurisdictions and would inevitably led to future “mistakes and possible prejudices of the state tribunals” and “serious embarrassments and most injurious delays in the exercise of proper federal authority.” Dixon was obliged to note that the court’s decision was preliminary and not final, as he anticipated and hoped the proper court–namely the Supreme Court–would answer the significant federal constitutional questions before him. Kemp asked not just about the right to suspend habeas corpus by Presidential order, but also the power of the President to make criminal acts not criminalized by Congress. Dixon acknowledge the public and judicial debate over habeas, referencing Chief Justice Taney’s opinion in Ex Parte Merriman, but also the pamphlet of Judge Curtis on Executive Power and the opinion of Justice Hall in New York’s In RE Benedict. 6

Following Curtis, Dixon argued that “martial law is restricted to those places which are the theatre of war, and to their immediate vicinity.” The test of the Civil War was “whether the civil authorities are able, by the ordinary legal process, to preserve order, punish offenders, and compel obedience to the laws.” Finally, if civil authority was sufficient, then the military commander has no jurisdiction but if through the “disloyalty of the civil magistrates or the insurrectionary spirit of the people, the laws cannot be enforced and order maintained, then martial law takes the place of civil law, wherever there is a sufficient military force to execute it.” 7 Dixon’s decision found that General Elliot had not shown sufficient cause to hold the petitioner or to refuse to produce his body upon the writ of habeas corpus. However, Dixon reiterated his desire for guidance from higher courts as to how to proceed, believing other precedent suggested caution.

Dixon’s concerns were not necessarily shared by the two other Wisconsin justices writing in the case. Judge Orasmus Cole interpreted the Militia Act of 1862 8 as having an explicit limit on the power of the federal government, as it did not “declare that the act of discouraging enlistments or resisting militia drafts shall subject a party to martial law and trial by court martial.” Only when there were “any defects in existing laws or in the execution of them in the several states” was the President authorized to make all necessary rules and regulations for the enrollment of the militia and for making the draft. 9 Judge Paine, who had participated in the Booth litigation, agreed. The law neither made resistance to a draft by a citizen an offense triable and punishable by the military authorities nor did it confer upon the President power to make it punishable in the claimed manner. Paine thought draft resistance might be punishable by the civil authorities, but not court martial and no known acts of Congress gave the President the “extraordinary power of declaring certain offenses committed by a citizen, triable by martial law.” 10 Similarly, the suspension of habeas corpus itself by Lincoln’s September 20th order usurped the proper legislative function of suspending law. The power was only given to Congress, for it was the preeminent legislative authority. The “war power” given to the President could not alter the Constitutional structure. Citing Justice Levi Woodbury’s dissent in Luther v. Borden (1849), 11 Cole pointed to the limitations of martial law to the “theatre of war,” from which Wisconsin was “far removed.” The civil authority of the state courts remained in place. The “theater of war” had to be constitutionally limited, otherwise it would be boundless and “all states and districts must be subjected to the operation of martial law” under the guise of winning the war against the rebellion. Such a principle was “dangerous to constitutional governments, and cannot be sanctioned.” 12

Yet, despite spilling ink on habeas, presidential power, and military versus civil law, none of the justices ever mentioned Ableman. Despite the Ableman ruling, the Wisconsin Supreme Court took the Kemp case without any question of jurisdiction, issuing a ruling striking down Lincoln’s suspension. This was partly because the federal government failed to make an appearance and thus did not contest the jurisdiction of the Wisconsin Supreme Court. The Lincoln Administration responded to the Kemp decision by having the War Department send Senator Timothy O. Howe to Madison, Wisconsin to “facilitate an appeal to the Supreme Court” while Edwin Stanton wrote to General Elliott that the President had referred the matter to the Attorney General in order to procure the judgement of the Supreme Court. 13

In a confidential letter to Stanton, Attorney General Edward Bates “insisted emphatically” that the Administration should not bring the constitutional question before the Supreme Court “lest it inflict upon itself a serious injury.” Bates “stated frankly” that if the question of habeas came before the Supreme Court, he feared it would rule against the administration. Such a decision would “paralyze the administration” and he discounted the chance the Court would rule favorably to the administration. 14 Ultimately, Bates’ view won out. In order to avoid both a Supreme Court decision and to void the Kemp ruling, the administration pushed Congress to act. As we will see my next column, by the following January, the Wisconsin court finally relented and denied an application for a writ of habeas corpus following both Congress’ passage of the Habeas Corpus Act of 1863 and President Lincoln’s September 1863 suspension of the writ. But they would yield without questioning the act’s constitutionality. 15

1. “A Proclamation on the Suspension of Habeas Corpus, 1862,” General Orders No. 141, https://​www​.gilder​lehrman​.org/​c​o​n​t​e​n​t​/​p​r​o​c​l​a​m​a​t​i​o​n​-​s​u​s​p​e​n​s​i​o​n​-​h​a​b​e​a​s​-​c​o​r​p​u​s​-1862 (“Whereas it has become necessary to call into service not only volunteers but portions of the Militia of the states by draft…and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure….the writ of habeas corpus is suspended in respect to all persons arrested.”)

2. No author. Suspension of the Habeas Corpus: Its Constitutionality Affirmed–Decision of Judge Manierre, of the Circuit Court of Cook County, Illinois. Chicago Journal. Nov. 21. 1.

3. Ibid. (Citing (11 Mass. 63, 67, 24 Pick. 227, 12 N.H. 194, 9 John. 239, 10 John 328)

4. Ibid. (Citing 3 Story’s Com. on Const. 92; Martin v. Mott, 12 Wheat 30; Federalist No. 29)

5. In RE Kemp, 16 Wis. 359, 365. (1863)

6. Taney’s Merriman opinion is the subject of a longstanding academic debate, but its significance during the war as apparent, as Taney, by taking the stance that Lincoln could not independently suspend the writ helped to spur a public debate over the power to suspend the writ. Justice Benjamin Curtis, who left the Supreme Court following the Dred Scott decision, wrote a pamphlet in 1862. Curtis argued that it was “universally admitted” that Congress alone could suspend the writ and that as far as he knew, no one had argued the President could annul state law, create new criminal offenses, and erect military commissions to punish them by executive order. Benjamin Roberts Curtis, Executive Power (Boston: Little, Brown & Co., 1862), 18.

7. In Re Kemp, 16 Wisc. at 369.

8. The July 17, 1862 Act was an amendment to the Militia Act of 1795, authorizing the President to call forth the militia for no longer than 9 months, the enrollment was to include all males between 18 and 45, with the President allowed to make all necessary rules and regulations to fix any defects in state law or procedure.

9. Ibid at 374–75. The President was vested with “discretionary power to remedy defects in existing state laws, in respect to the enrollment and calling out of the militia,” but this was only power related to carrying out and executing the draft in its details, and could not grant the President authority to subject a citizen to trial and punishment by court martial for resisting the draft.

10. Ibid at 375.

11. 48 U.S. 1 (1849) This case rose out of the Dorr Rebellion in Rhode Island asking the Supreme Court to decide that the chartered government was not a “republican government” under Article IV, Sec. IV, establishing the “political question” doctrine.

12. In Re Kemp, 16 Wisc. at 377.

13. Carl B Swisher, American Constitutional Development (Boston: Houghlin Mufflin, 1943), 922–23.

14. David M. Silver, Lincoln’s Supreme Court, (Urbana: University of Illinois Press, 1998) 124. Bates argued that, “knowing as we do, the antecedents and present proclivities of the majority of that Court (and I speak of them with entire respect) I can anticipate no such results.”

15. In re Oliver, 17 Wisc. 681, 686–87 (1864).